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Madhya Pradesh High Court · body

2013 DIGILAW 456 (MP)

Badri Prasad Gupta v. State of M. P.

2013-04-04

N.K.GUPTA

body2013
JUDGMENT : The applicant was convicted for the offence punishable under sections 7(1) read with 16(1)(a)(i) and 7(3) read with Rule 50(1) read with Section 16(1)(a)(ii) of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the “P.F. Act”) vide judgment dated 19.9.1997 passed by the Chief Judicial Magistrate, Shahdol in Criminal Case No.669 of 1993 and sentenced with six months rigorous imprisonment with fine of Rs.1000/- for each count. Criminal Appeal No.148/1997 was dismissed by the learned First Additional Sessions Judge, Shahdol vide the judgment dated 25.6.1999. Being aggrieved with the aforesaid judgments passed by both the Courts below the applicant has preferred the present revision. 2. The prosecution’s case in short is that, on 24.1.1993 at Village Tetka the Food Inspector Shri S. B. Nigam went to the shop of the applicant and shown his identity. On demand the applicant could not produce any licence for sale of various edible products. Thereafter, the Food Inspector proposed to take the sample of white sugar confectionery in a sealed packet and thereafter, he purchased 600 gms. of such confectionery tablets and a receipt of payment was obtained from the applicant. The sweet confectionery were distributed and divided in three packets and thereafter, kept in a dry, clean polythene packets and duly sealed. Thereafter, the slip of Local Health Authority was affixed on each of the boxes. Various memos were prepared about the procedure. One part of the sample was sent to the Public Analyst whereas, remaining two parts were deposited in the office of Local Health Authority. The Public Analyst vide report Ex.P/10 sent the opinion that the sample was adulterated. Thereafter, the Food Inspector obtained the permission of prosecution from Deputy Director Food and Drugs Administration, Shahdol and a complaint was filed. A notice under Section 13(2) of the P.F. Act was sent to the applicant on 27.7.1993 and it was marked at Ex.P/12. Postal receipt was exhibited at P/13. However, the applicant did not apply for analysis of the sample from the Central Food Laboratory. 3. The applicant abjured his guilt. He did not take any specific plea in the case. He has stated that he was not doing any business of such confectionery etc. However, no defence evidence was adduced. 4. Postal receipt was exhibited at P/13. However, the applicant did not apply for analysis of the sample from the Central Food Laboratory. 3. The applicant abjured his guilt. He did not take any specific plea in the case. He has stated that he was not doing any business of such confectionery etc. However, no defence evidence was adduced. 4. On the basis of the evidence adduced by the prosecution the learned Chief Judicial Magistrate, Shahdol convicted and sentenced the applicant as mentioned above whereas, the appeal filed by the applicant was dismissed by the appellate Court. 5. I have heard the learned counsel for the parties. 6. The learned counsel for the applicant took the objection that the applicant was a servant in that shop and therefore, he was not responsible for any adulteration done in the shop. However, the applicant did not produce any defence evidence to show that he was no where connected with the transaction of the shop. On the contrary he had sold 600 gms. of confectionery to the Food Inspector and a receipt was also issued by the applicant. Under such circumstances, where he did not inform the name of the owner of the shop to the Court even, such contention cannot be accepted. 7. The applicant accepted in his statement under Section 313 of the Cr.P.C that he received a notice under Section 13(2) of the P.F Act and therefore, in the present case non-compliance of the provision of Section 13(2) of the P.F Act does not involve. The learned counsel for the applicant has also submitted that the sample was not sent to the Public Analyst within time. However, looking to the nature of the sample where the Public Analyst found the sample was received in a sealed position and slip of the Local Health Authority was intact, under such circumstances if any delay was caused in sending the sample, then it is not fatal to the prosecution and the applicant cannot get any advantage. 8. The learned counsel for the applicant has submitted that the learned Additional Sessions Judge has considered the old provisions of the Food Adulteration Rules in assessment of the report Ex.P/10 of the Public Analyst. The learned Additional Sessions Judge found that percentage of “Ash sulphated” was above the prescribed higher weight. 8. The learned counsel for the applicant has submitted that the learned Additional Sessions Judge has considered the old provisions of the Food Adulteration Rules in assessment of the report Ex.P/10 of the Public Analyst. The learned Additional Sessions Judge found that percentage of “Ash sulphated” was above the prescribed higher weight. The learned counsel for the applicant has referred the provisions of Article A.25.01 of the Appendix 'B” of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the “P.F. Rules”) in which it is shown that the standard for sugar boiled confectionery was amended w.e.f 8.10.1988 and the sample was taken in the year 1993 by which it is apparent that percentage of “Ash sulphated” was required to be not more than 2.5% by weight whereas, in the present sample percentage of “Ash sulphated” was found to be 2.35% by weight and therefore, the sample was not adulterated on the count of percentage of “Ash suplhated”. Hence it is submitted that the sample was not adulterated. 9. The learned Panel Lawyer has submitted that there was no objection to the percentage of “Ash sulphated” because it was less than the prescribed limit. However, in count “Ash Insoluble in dilute Hydrochloric acid” was found to be 0.294% whereas according to the standard it should not be more than 0.2% and therefore, the sample was adulterated. The contention raised by the learned Panel Lawyer appears to be correct. The standard prescribed in the Article A.25.01 may be read as :- “(i) Ash sulphated (on salt free basis) Not more than 2.5 percent by weight. Provided that in case of sugar boiled confectionery where spices are used as centre filling, the ash sulphated shall not be more than 3 per cent by weight. (ii). Ash insoluble (in dilute Hydrochloric acid) Not more than 0.2 per cent by weight. Provided that in case of sugar boiled confectionery where spices are used as centre filling, the ash insoluble in dilute Hydrochloric acid shall not be more than 0.4 percent.” and therefore, it appears that prima facie the sample was adulterated because “Ash insoluble in dilute Hydrochloric acid” was found to be 0.294 %. 10. Provided that in case of sugar boiled confectionery where spices are used as centre filling, the ash insoluble in dilute Hydrochloric acid shall not be more than 0.4 percent.” and therefore, it appears that prima facie the sample was adulterated because “Ash insoluble in dilute Hydrochloric acid” was found to be 0.294 %. 10. The learned counsel for the applicant invited the attention of this Court to the fact that the Food Inspector did not mention that whether any filling was there in the confectionery or not because if confectionery contains some fillings inside it, then the percentage to “Ash insoluble in dilute Hydrochloric acid” should be less than 0.4% and in such a circumstance, the sample was not adulterated. 11. After considering the memo by which a sample was taken and form 6 under Rule 12 of the P.F. Rules, it is no where clear that whether any substance was filled in the confectionery or not and therefore, the applicant shall get the benefit of doubt to that case because if anything is filled in the confectionery then the percentage of “Ash Insoluble in dilute Hydrochloric acid” should be less than 0.4% and in the present sample the Public Analyst found it to be 0.294% which was less than 0.4%. Under such circumstances, it is highly doubtful whether the sample was adulterated or not. Under such circumstances, the applicant cannot be convicted for offence of adulteration. The learned Chief Judicial Magistrate as well as the learned Additional Sessions Judge have committed an error of law in convicting the applicant for offence punishable under Section 7(1) read with Section 16(1) (a)(i) of the P.F. Act. 12. So far as the non-availability of the licence is concerned, it is proved that the applicant did not have any licence for storing such edibles for sale and the applicant could not show any licence before the trial Court, therefore, he was rightly convicted for offence punishable under Section 16(1)(a) (ii) of the P.F Act. However, he remained in the custody for 57 days and he has deposited the fine amount of Rs.2000/- before the trial Court. Also he faced the trial, appeal and revision since last 20 years. However, he remained in the custody for 57 days and he has deposited the fine amount of Rs.2000/- before the trial Court. Also he faced the trial, appeal and revision since last 20 years. Under such circumstances, it is a proper case that the sentence of the applicant be reduced to the period which he has already undergone in the custody according to the 3rd proviso of Section 16(1) of the P.F. Act. 13. On the basis of the aforesaid discussion the revision filed by the applicant is partly allowed. The conviction as well as the sentence for offence punishable under Section 7(1) read with Section 16(1)(a)(i) of the P.F Act is hereby set aside. The applicant is acquitted from that charge, whereas the conviction for offence punishable under Section 16(1)(a)(ii) of the P.F Act is maintained but sentence is reduced to the period which he has already undergone in the custody and fine is also reduced to a sum of Rs.500/- according to the 3rd proviso of Section 16(1) of the P.F Act. The applicant would be entitled to get the remaining fine amount back from the trial Court. 14. At present the applicant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. 15. Copy of the order be sent to both the Courts below along with their records for information.